David Josiah Brewer

“ I respectfully insist that the magnitude of the loss supposed to result to the government is a mere chimera of the imagination, ignotum pro magnifico,-and that, even if it be ever so great, it furnishes no ground for a departure from settled rules and established law. ”

“ Or, if not, and a selection is made of any particular tract within those limits, will not the land thus selected, and supposed to pass to the company, come within the rule here announced,-that if, before the patent shall issue, mines be discovered, it must be adjudged mineral land, and therefore not passing by the selection? In other words, the title to no lands within the place limits passes, because it is unknown whether they are mineral or not, and no selection can be made within the indemnity limits, because it is not known how much the deficiency is. ”

“ And yet with a strange inconsistency, as it seems to me, before the opinion is closed, it is declared, in effect, that congress meant that when the president should issue a patent the mineral wealth, vast as it is supposed to be, should then pass to the corporation. If congress, by its legislation, excluded mineral lands from the scope of this grant, then, surely, no executive officer is authorized to convey mineral lands, and even the patent of the president passes no title thereto. ”

“ First, ordinary lands are given to all willing to make homesteads of them, and sold to others for $1.25 per acre, and, when conveyed, carried all mines and minerals beneath the surface; second, as to the ungranted and still public lands, they are open to exploration by individuals, and the discoverer of mines is entitled to purchase the land embracing the mines on the payment of $5 per acre, if the mine is a lode or vein, and $2.50 an acre if it is a placer mine. ”

“ Again, it is abundantly well settled that lands, the title to which remain in the government, are not subject to taxation. Can it be that congress contemplated that the territories and states which should be organized along the line of this transcontinental highway should not be able to tax any alternate sections within the place limits of this grant until such time as it should appropriate money for an exploration as to their character? Take this particular tract for illustration: In 1872 the line of definite location was fixed. ”

“ Every surveyor shall note in his field-book the true situations of all mines, salt licks, salt springs, and mill seats which come to his knowledge, all water courses over which the line he runs may pass, and also the quality of the lands. ”

“ Ct. 158. That was a case involving the construction of the grant to the Central Pacific Railroad Company, which grant, as the one before us, excluded from its operation mineral lands. No patent had issued for the particular tracts. The plaintiff claimed by lease from the Central Pacific Railroad Company, and brought an action of ejectment against the defendant in possession. ”